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Precision War and Responsibility: Transformational Military Technology and the Duty of Care Under the Laws of War*

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Precision War and Responsibility: Transformational Military Technology and the Duty of Care Under the Laws of War* Note Precision War and Responsibility: Transformational Military Technology and the Duty of Care Under the Laws of War* Dakota S. Rudesill t I. IN TRO DU CTIO N............................................................................................................................ 5 17 II. ARCHITECTURAL OVERVIEW : LOAC .......................................................................................... 520 III. DUTY OF CARE: JURISPRUDENTIAL BASIS .................................................................................... 523 IV. THE DUTY OF CARE: TREATY AND PRACTICE BASES ................................................................... 527 A. The Four Principles: Treaty and Customary Law .......................................................... 528 B . The Four Principles:Practice ........................................................................................ 529 V. THE REASONABLE COMBATANT: PRECISION BUT NOT PERFECTION ........................................... 531 A . The Reasonable Combatant ........................................................................................... 531 B. "Effects-Based Targeting "'and Responsibilityfor Effects ............................................. 533 C. A Duty of Care, Not of Perfection................................................................................... 535 1. The Nature of W ar ............................................................................................. 535 2. P erverse R esults ................................................................................................ 537 D . Combatant as Fiduciary? ............................................................................................... 538 VI. ADJUDICATORY PREDICTIONS AND IMPLICATIONS ....................................................................... 541 A . P redictions ...................................................................................................................... 54 1 B. Implications: TransnationalNorm Diffusion ................................................................. 543 V II. CO N CLUSIO N ................................................................................................................................ 544 I. INTRODUCTION On January 3, 2006, an American military aircraft dropped a precision- guided munition (PGM) on a house near Baiji, Iraq, 150 miles north of * This Note was a prize-winning submission to The Yale Journalof InternationalLaw Fifth Annual Young Scholars Conference, held on March 10, 2007 at Yale Law School. t Visiting Fellow, Center for Strategic & International Studies (CSIS); J.D., Yale Law School, 2006; B.A. in Foreign Policy, St. Olaf College, 1994; Professional Staff Member, U.S. Senate Budget Committee, 2001-2003; National Security Legislative Assistant to U.S. Sen. Kent Conrad, 1995- 2000. On a periodic and continuing basis, the author has participated in the CSIS Project on Nuclear Issues and consulted for defense contractors on advanced technology programs. The content of the Note is, however, the sole responsibility of the author. For reading and offering tremendously valuable comments, the author sincerely thanks William A. Owens, Eric Jensen, Derek Smith, Christopher Mandernach, Jeffrey Kaliel, Sahr Conway-Lanz, Randy Cook, Rebecca Rudesill, Noah Novogrodsky, Beth Van Schaack, the editors of The Yale Journal of International Law (particularly Peter Harrell, Greta Milligan, Lauren Baer, and Stephen Ruckman), the participants in The Yale Journal of InternationalLaw Fifth Annual Young Scholars Conference (Mar. 10, 2007), where this paper was presented. Finally, the author would also like to acknowledge his deep debt of gratitude to the Yale Law School's outstanding international law faculty, particularly to Dean Harold Hongju Koh, and to Professor Mirjan Damalka, whose international criminal law seminar inspired this Note. THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 32: 517 Baghdad. The house was thought to be an insurgent redoubt, but media reports indicated the strike was in error; an Iraqi family of twelve was killed, including women and children.1 Although a military spokesman emphasized the great care with which targets are selected, American military reconnaissance and precision strike capabilities are so advanced that efforts to explain such tragic events as mechanical or human errors have sometimes been met with skepticism. Some have gone as far as to allege intentionality-claiming that the U.S. military technology that has performed so brilliantly in wars in Iraq, Afghanistan, and the former Yugoslavia is just too good to permit good-faith mistakes. During the Kosovo war, for example, Chinese officials claimed that the May 7, 1999, destruction of Beijing's embassy in Belgrade by a B-2 stealth bomber armed with global positioning system (GPS)-guided bombs could not have been the "tragic mistake" that then-CIA Director George Tenet attributed to "basic failures . of 2systems and procedures that are used to identify and verify potential targets." More credible and significant, however, have been accusations that the American military has, in essence, used its advanced capabilities negligently. In response to civilian deaths in recent wars, Human Rights Watch has said that U.S. efforts to verify targets for precision strikes "have not been sufficiently rigorous, to date, to 3avoid substantial harm to civilians. The standard of care should be higher." Obeying the law of war has long been official U.S. policy, 4 and on balance the U.S. military has an exemplary record regarding the care with which it employs force. Precisely because of its impressive equipment, 1. Ellen Knickmeyer & Salih Saif Aldin, U.S. Raid Kills Family North of Baghdad, WASH. POST, Jan. 4, 2006, at A 12, availableat http://www.washingtonpost.com/wp-dyn/content/article/ 2006/01/03/AR2006010300524.html. 2. Statement on the Belgrade Chinese Embassy Bombing: Open Hearing Before the H. Permanent Select Comm. on Intelligence, 106th Cong. (July 22, 1999) (statement of George Tenet, Dir. of Cent. Intelligence), available at https://www.cia.gov/cia/public affairs/speeches/1999/dci speech_ 072299.html. See generally Elisabeth Rosenthal, Public Anger Against U.S. Still Simmers in Beying, N.Y. TIMES, May 17, 1999, at A11. 3. HUMAN RIGHTS WATCH, INTERNATIONAL HUMANITARIAN LAW ISSUES IN A POTENTIAL WAR IN IRAQ (Briefing Paper, Feb. 20, 2003), http://www.hrw.org/backgrounder/arms/iraq0202003 .htm#6 [hereinafter HRW]. 4. Last year the Department of Defense (DoD) re-issued its core LOAC training order. See DEP'T OF DEF., DIRECTIVE 231 1.01E, LAW OF WAR PROGRAM § 4.1 (May 9, 2006). The Department's LOAC training guidance was first issued in 1974 after the My Lai massacre in Vietnam. See Colin H. Kahl, How We Fight, FOREIGN AFF., Nov.-Dec. 2006, at 83, 85. 5. This impression is not widely shared among the global public. A June 2003 Pew Global Attitudes survey found that the view that the United States "didn't try hard enough" to avoid civilian casualties during the invasion of Iraq in 2003 was widely shared-including by more than 90 percent of Jordanians, Moroccans, and Palestinians. PEW RESEARCH CENTER FOR THE PEOPLE & THE PRESS, VIEWS OF A CHANGING WORLD 24-25 (June 2003), available at http://pewglobal.org/reports/pdf/l85.pdf. It is unlikely that attitudes apparent in 2003 would have improved over the course of four more years of a war that has claimed tens of thousands of lives. For discussion of Iraqi casualty figures, see Kahl, supra note 4, at 86-87. In contrast, one scholar who recently studied U.S. LOAC compliance in Iraq concludes that "despite some dark spots on its record, the U.S. military has done a better job of respecting noncombatant immunity in Iraq than is commonly believed . .. [and] has been improving." Id. at 84. "All told, the number of civilian deaths per ton of air-delivered munitions during major combat in Iraq" was a small fraction of what it was in World War II, reflecting advances in technology but produced primarily by abandonment of World War II-era "intentional efforts to destroy enemy morale" by 2007] Precision War and Responsibility training, and professionalism, however, the American military is often politically held to a higher operational standard, and there has been discussion of whether it should be held to a higher legal standard as well. 6 It is conceivable that future apologies for "collateral damage" will not only be met with skepticism but also with calls for those responsible to be prosecuted for war crimes. The aggrieved may argue: Under the laws of war, it was criminally negligent for a military with such revolutionary technology-and thus unprecedented ability to adhere to legal requirements of necessity, discrimination, 7 proportionality, and humanity in the use of force-to have caused collateral damage, even unintentionally. From the post-World War II war crimes trials, to the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, to the trial of Saddam Hussein, the past six decades have witnessed repeated efforts to hold commanders accountable (directly and via command responsibility) for deliberate attacks on non-combatants. To date, however, no international war crimes litigation has focused on purely accidental violations of the laws of war attributed to negligent use of the advanced technology that has brought about 8 the American "Revolution in Military Affairs" 9(RMA), now often referred to by the shorthand appellation "Transformation."
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